Vikram Enterprises vs Govt. Of Nct Of Delhi & Ors.
2011 Latest Caselaw 142 Del

              *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                            Date of decision: 11th January, 2011

+                            W.P.(C) 10221-22/2004

         VIKRAM ENTERPRISES                                     ..... Petitioner
                     Through:             Mr. Abhay Singh, Ms. Yasmin Zafar
                                          & Mr. Abhinav Lohia, Adovcates.
                                   Versus
    GOVT. OF NCT OF DELHI & ORS.             ..... Respondents
                  Through: Mr. Asutosh Lohia, Adv. for R-3
                            NDMC.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                     No

2.       To be referred to the reporter or not?              No

3.       Whether the judgment should be reported             No
         in the Digest?

RAJIV SAHAI ENDLAW, J.

CM No.11832/2010 (of the petitioner for restoration of the writ petition dismissed in default on 2nd August, 2010).

1. It was made clear on 6th September, 2010 that the application for

restoration shall be heard only when the petitioner is also willing to argue

the writ petition on merits. The counsel for the petitioner has today

expressed willingness to argue the writ petition on merits. The counsel for

the petitioner has been heard on the writ petition. The counsel for the

respondent no.3 NDMC has been heard in opposition to the application for

restoration.

2. For the reasons stated in the application, the same is allowed and the

writ petition is restored to its original position.

W.P.(C) 10221-22/2004

3. The counsels for the petitioner and the respondent no.3 NDMC have

been heard.

4. The writ petition impugns the order dated 8th January, 2004 of the

Appellate Tribunal, MCD, only partly allowing the appeal of the petitioner

against the order dated 15th February, 2000 of the respondent no.3 NDMC of

demolition of unauthorized construction on Plot No.2, West Kidwai Nagar,

New Delhi of the petitioner and the order dated 17th March, 2004 of the

Administrator, Delhi in second appeal preferred by the petitioner, dismissing

the same.

5. It is not in dispute that construction beyond the sanctioned plan exists

on the property. The contention of the petitioner is that the said construction

beyond the sanctioned plan has been in existence since prior to 1984 when

the Punjab Municipal Act, 1911 then governing the area was amended.

Prior to the said amendment, the unauthorized construction was actionable

only within a period of six months of construction.

6. Both, the Appellate Tribunal, MCD and the Administrator, Delhi have

returned a finding of fact that the construction of which demolition has

finally been ordered, was not in existence since prior to 1984 and therefore

not protected.

7. Notice of the writ petition was issued and interim relief against the

demolition granted to the petitioner. In the order dated 6 th September, 2010

in the present proceedings, it is noted that a perusal of the record shows that

the petitioner after obtaining the interim order had been delaying the

disposal of the writ petition. It was in these circumstances directed that the

application for restoration of the writ petition dismissed in default will be

considered only when arguments on merits on the writ petition are also

addressed.

8. The finding that the unauthorized construction is of a period after

1984 is a finding of fact. The Legislature in its wisdom has provided no

further remedy against the order of the Administrator, Delhi in second

appeal. This Court in exercise of writ jurisdiction would not interfere with

such findings of fact especially concurrent, unless any grave miscarriage of

justice or flagrant violation of law calling for intervention is pointed out. It

was held by the Supreme Court in Chandavarkar Sita Ratna Rao Vs.

Ashalata S. Guram (1986) 4 SCC 447 that if there is evidence on record on

which a finding can be arrived at and if the Court has not misdirected itself

either in law or on fact then in exercise of the power under Article 226 the

High Court should refrain from interfering with such findings made by the

appropriate authorities. Similarly, in Bathutmal Raichand Oswal Vs.

Laxmibai R. Tarta AIR 1975 SC 1297, dealing with the supervisory powers

of the High Court under Articles 226 and 227, it was held that the powers

cannot be invoked to correct an error of fact which only a superior Court can

do in exercise of its statutory power as a Court of Appeal and the High

Court in the guise and exercise of jurisdiction under Articles 226 and 227

cannot be converted into a Court of Appeal when the Legislature has not

conferred a right of appeal and made the decision of subordinate Court or

Tribunal final on facts. In Shamshad Ahmad Vs. Tilak Raj (2008) 9 SCC 1

it was reiterated that the power under Article 226 though wide, the High

Court in exercise of such power cannot act as a Court of Appeal or a Court

of Error; it can neither review nor reappreciate nor reweigh the evidence

upon which determination of a subordinate Court or an inferior Tribunal

purports to be based or to correct errors of fact or even of law and to

substitute its own decision. In State of Maharashtra Vs. Millind 2007 (7)

SCALE 628 it was held that the High Court would be justified in interfering

with those cases where the conclusion of the inferior authority is based upon

exclusion of some admissible evidence or consideration of some

inadmissible evidence or the inferior authority has no jurisdiction at all or

that the finding is such which no reasonable man could arrive at on the

materials on record.

9. Faced with the aforesaid, the counsel for the petitioner has contended

that the Tribunals below have considered only one of the two House Tax

assessment notices relied upon by the petitioner. Attention in this regard is

invited to the notices No.ACII/14/2/278/Tax and No.ACII/14/2/276/Tax,

both dated 8th January, 1985 purportedly issued by the respondent no.3

NDMC to the petitioner. However a perusal of the order of the

Administrator, Delhi shows that the Administrator in the last paragraph of

the order has considered both of the said notices. It is thus not as if any

evidence has been left out.

10. The counsel for the petitioner then contends that the Administrator,

Delhi has misread one of the documents. It is contended that the

Administrator, Delhi has, while concluding that there were two office rooms

admeasuring 182 sq. ft. each relied upon the abbreviation "Do" in the notice

bearing No. ACII/14/2/276/Tax and has not considered the office room in

the notice bearing No. ACII/14/2/278/Tax.

11. I am afraid the aforesaid investigation is beyond the scope of

interference in this jurisdiction. It cannot be lost sight of that the petitioner

has no equities in its favour. The petitioner claims that the plot was allotted

as a war widow and for the purposes of construction of an LPG godown. It

is further the case that the plans for construction of the godown were got

sanctioned and the notices aforesaid of the respondent no.3 NDMC are

stated to be the first notices of assessment after the completion of

construction. It is undisputed that the construction as in existence is beyond

the sanctioned plan. I find it difficult to fathom that the respondent no.3

NDMC while issuing the notices of first assessment for House Tax would

not have objected to the unauthorized construction, if any then existing.

12. Moreover, a person who indulges in and raises unauthorized

construction has no equity in its favour.

13. The counsel for the petitioner on enquiry states that no objections to

the notices of proposed assessment were filed. On enquiry, it is further

stated that the orders of assessment have not been produced before the

Tribunals below or before this Court. I am of the view that it would have

been the order of assessment which would have disclosed as to what

construction was finally assessed.

14. No grounds for interference in the concurrent orders of the Tribunals

below are made out. The writ petition is dismissed and the interim orders

stand vacated. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) JANUARY 11, 2011 Bs..